Karnataka HC Personal Law Cannot Override POCSO Act

Facts in Brief

• The victim, in this case, is a 15-year-old girl. The mother of the victim claimed that her daughter was abducted by the accused who is the petitioner in this case.
• It was alleged that the girl was abducted from the house on 28th September 2020 and on 3rd October 2020, the girl came back home weeping.
• Upon asking, the victim told her mother that she was sitting using her mobile phone when the petitioner forcibly took her with him by gagging her with a napkin to his relative’s house. She was kept there for three days and wasn’t allowed to talk to anyone.
• Later, the petitioner took her to a lonely place and made her sign on a document. Then on 1st October, the wife of the Petitioner took her to a house where the petitioner sexually assaulted her and on 3rd October the victim escaped from the accused’s custody.
• A case has been registered against the accused u/s 363, 342, 114, 506, 376, read with section 34 of the Indian Penal Code, Sections 6, 6, 17, 18 of the POCSO Act, and Sections 9 and 10 of the Child Marriage Restraint Act.
• The bail application filed by the accused before the trial court was rejected, and given that the accused approached the High Court.

Court’s Observations

• In this case, the Hon’ble Karnataka High Court held that even though second marriage is permissible in Mahomedan law, the personal laws cannot override the POCSO, Child Marriage Restraint Act, and General Penal Code of the country.
• The Court also turned down the no objection given by the victim for bail to be granted to the accused. However, the Hon’ble Court opined that even if the victim had given her consent, it is immaterial as it is a minor and her capacity of understanding cannot be on par with an adult who has completed 18 years of age.
• The Bench of Hon’ble Justice K. Natarajan further observed that the victim made a statement u/s 164 of the CrPC that she was threatened to marry the accused and was then taken to the house of the accused’s first wife where the accused had sexual intercourse with her.
• The Court held that if bail is granted to the accused on the no objection given by the victim, it will send a wrong message to society. Therefore, the Court ignored the consent of the minor girl giving consent for granting bail to the accused in the interest of the public at large and to curtail such sexual offenses.

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